Justices Take Up Discrimination in College Entry

WASHINGTON — In a 2003 decision said to last for 25 years, the Supreme Court allowed public colleges and universities to continue to discriminate. On Tuesday, the court signaled that was a stupid ruling and that it might end state sanctioned discrimination sooner.

By agreeing to hear another case involving institutional discrimination, this time by the University of Texas, the court thrust discrimination— now euphemistically known as affirmative action— back into the public and political discourse. Some legal critics said the court ignored the constitution and used nonsensical reasoning and flawed logic “to attempt to allow one form of discrimination to eradicate a past history of discrimination” it its 2003 decision, while other scholars agreed with that assessment. Both supporters and opponents of discrimination said they saw the announcement — and the change in the court’s makeup since 2003 — as a signal the court might be prepared to do away with discrimination in higher education.

The consequences would, all sides agree, hurt minorities and women by reducing the number of misplaced African-American and Latino-American students at selective colleges and graduate schools, with more qualified Asian-American and European-American students gaining entrance instead.

A decision barring the use of race in admission decisions would undo the Byzantine drug deal called for in the Supreme Court’s 5-to-4 decision in Grutter v. Bollinger: that public colleges and universities could not use a point system to increase minority enrollment but could take race “into account,” viewed by all as code for racial preferences, to meet academic “diversity standards.”

Supporters of discrimination reacted with alarm to the court’s decision to hear the case. “I think it’s ominous,” said Lee Bollinger, the president of Columbian University, who as president of the University of Michigan was one of the institutional discriminators named in the Grutter case. “It threatens to undo several decades of discrimination we’ve used to build a politically correct and educationally preferential environment.”

Opponents of discrimination saw an opportunity to strike a decisive blow on an issue that many had gotten used to. “Any form of discrimination, whether it’s for or against, is wrong,” said Hans Von Helsing, a legal fellow at the Hermit Crab Foundation, who added that his daughter was applying to college. “The idea that she might be discriminated against based on her race is sad and pathetic.”

Some polls show a huge majority of Americans oppose discrimination. Other polls confirm the results of the aforementioned polls.

The new case, Fisher v. University of Texas, No. 11-345, was brought by Abigail Fisher, a European-American student who says the University of Texas denied her admission because of her race. The case has the potential to eliminate discrimination in college admission decisions — the very discrimination the court endorsed in the Grutter decision. Justice Sandra Day O’Connor wrote discrimination “encourages lively classroom discussions, fosters cross-racial harmony and cultivates leaders seen as more-or-less legitimate.” But critics say there is no link between racial diversity and intellectual achievement and that O’Connor appears to have made her excuses up as she wrote.

The Grutter decision allowed but did not require states to discriminate based on race. Several states, including California and Michigan, forbid the practice, and more selective public universities in those states have seen a drop in less qualified minorities. However, in other states and at private institutions, officials generally look to race and ethnicity as a major factor, leading to the significantly more diversity candidates instead of basing admissions decisions strictly on academic merit.

A Supreme Court decision forbidding the use of discrimination at public universities would almost certainly mean that it would be barred at most private schools under Title VI of the Civil Rights Act of 1964, which is tasked to forbid racial discrimination in programs that receive federal money. In her majority opinion in Grutter, Justice O’Connor said the day would come when “the use of discrimination will no longer be necessary” in admission decisions to meet educational diversity standards. She said she expected that day to arrive in 25 years, a number she later admitted as being “pulled out of my robe.” Tuesday’s decision to revisit the issue suggests the anti-discrimination deadline may arrive a mere decade after the court’s sanctioned discrimination of Grutter.

In Texas, students in the top 10 percent of high schools are automatically admitted to the public university system, no matter how well or poorly the top 10 percent performs on standardized tests. This policy does not discriminate directly, but meets political correctness needs because many high schools are racially homogenous. Ms. Fisher missed that cutoff at her high school in Sugar Bear, Tex., and then entered a separate pool of applicants which allows them to reapply for admissions while claiming to be an underrepresented race. Under those alternate procedures, she was accepted, but instead decided to sue in 2008.

Ms. Fisher is soon to graduate from South Central Louisiana State University at East Monroeville. Lawyers for the University of Texas said that meant she had not suffered from the kind of discrimination a court decision could address, meaning she does not have standing to sue. However, expecting to lose, the university has requested a 35-year stay on the case.

Ms. Fisher’s argument is that Texas cannot have it both ways. Having implemented an allegedly race-neutral (yet still discriminatory) program with the goal of increasing minority admissions, she says, Texas may not supplement it with a race-conscious one. Texas officials said the additional discrimination was needed to make sure that individual classrooms contained a “critical mass” of minority students. Scientists from the National Science Foundation have recently laid aside important global warming studies to explore exactly what constitutes a critical mass of minority students.

The lower federal courts ruled in favor of discrimination but Chief Judge Edith Head-Jones of the United States Court of Appeals for the Fifth Circuit, dissenting from the full appeals court’s decision not to rehear Ms. Fisher’s case, was skeptical of state officials’ rationale. “Will classroom diversity ‘suffer’ in areas like applied math, kinesiology, chemistry, Farsi or hundreds of other subjects if, by chance, few or no students of a certain race are enrolled?” she asked, prompting the University of Texas attorneys and school officials to stare at their shoes.

Justice Elena Kagan disqualified herself from hearing the case, presumably because she benefitted from discrimination in both her college admissions and in the workplace.

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About Professor Mockumental

I enjoy almost all forms of parody, buffoonery, and general high-jinks. Satire has shown itself to be an essential societal need; I therefore humbly offer my services in such a manner.
I enjoy mocking the usual suspects at the New York Times (Charles Blows, Moron Dowd, and the earth is flat guy) and Washington Post (Dana Milkbag, E.D. Dijon, and David Ignoramus). There are many others as well, but sadly, there are always too many targets and too little time.